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Territorial intergrity

Political independence

Domestic jurisduction

According to the ICJ reports in 1950 in Interpretation of Peace Treaties with Bulgaria, Hungary and
Romania, Second Phase, The attribution of conduct to the State as a subject of international law is based
on criteria determined by international law and not on the mere recognition of a link of factual causality.
As a normative operation, attribution must be clearly distinguished from the characterization of conduct
as internationally wrongful.

Its concern is to establish that there is an act of the State for the purposes of responsibility. To show that
conduct is attributable to the State says nothing, as such, about the legality or otherwise of that conduct,
and rules of attribution should not be formulated in terms which imply otherwise. But the different rules
of attribution stated in chapter II have a cumulative effect, such that a State may be responsible for the
effects of the conduct of private parties, if it failed to take necessary measures to prevent those effects.
For example, a receiving State is not responsible, as such, for the acts of private individuals in seizing an
embassy, but it will be responsible if it fails to take all necessary steps to protect the embassy from seizure,
or to regain control over it. Advisory United States Diplomatic and Consular Staff in Tehran

In this respect there is often a close link between the basis of attribution and the particular obligation said
to have been breached, even though the two elements are analytically distinct.

In the Military and Paramilitary Activities in and against Nicaragua case, and in the Gabkovo-Nagymaros
Project case. The Court also referred to the principle in its advisory opinions on Reparation for Injuries
refusal to fulfil a treaty obligation involves international responsibility.

In the British Claims in the Spanish Zone of Morocco case and in the Armstrong Cork Company case.

In the Rainbow Warrior case, the arbitral tribunal stressed that any violation by a State of any
obligation, of whatever origin, gives rise to State responsibility.

One approach, associated with Anzilotti, described the legal consequences deriving from an
internationally wrongful act exclusively in terms of a binding bilateral relationship thereby established
between the wrongdoing State and the injured State, in which the obligation of the former State to make
reparation is set against the subjective right of the latter State to require reparation. Another view,
associated with Kelsen, started from the idea that the legal order is a coercive order and saw the
authorization accorded to the injured State to apply a coercive sanction against the responsible State

as the primary legal consequence flowing directly from the wrongful act.

According to this view, general international law empowered the injured State to react to a wrong; the
obligation to make reparation was treated as subsidiary, a way by which the responsible State could avoid
the application of coercion. A third view, which came to prevail, held that the consequences of an
internationally wrongful act cannot be limited either to reparation or to a sanction.
See, e.g., R. Ago, Le dlit international, Recueil des cours . . . , 1939II (Paris, Sirey, 1947), vol. 68, p.
415, at pp. 430440; and L. Oppenheim, International Law: A Treatise, vol. I, Peace, 8th ed., H.
Lauterpacht, ed. (London, Longmans, Green and Co., 1955), pp. 352354.

In international law, as in any system of law, the wrongful act may give rise to various types of legal
relations, depending on the circumstances.

For example, the conduct of certain institutions performing public functions and exercising public powers
(e.g. the police) is attributed to the State even if those institutions are regarded in internal law as
autonomous and independent of the executive government. [94] 98 Conduct engaged in by organs of the
State in excess of their competence may also be attributed to the State under international law, whatever
the position may be under internal law

Merits, Judgment, I.C.J. Reports 1986, p. 14, at p. 142, para. 283, and p. 149, para. 292. [13] 37 Gabkovo-
Nagymaros Project [(Hungary/Slovakia), Judgment, I.C.J. Reports 1997, p. 7], at p. 38, para. 47. [14]

38 Reparation for Injuries Suffered in the Service of the United Nations, Advisory Opinion, I.C.J. Reports
1949, p. 174, at p. 184. [15] 39 Interpretation of Peace Treaties with Bulgaria, Hungary and Romania,
Second Phase, Advisory Opinion, I.C.J. Reports 1950, p. 221.

Article 2. Elements of an internationally wrongful act of a State There is an internationally wrongful act of
a State when conduct consisting of an action or omission:

(a) is attributable to the State under international law; and

(b) constitutes a breach of an international obligation of the State.

These two elements were specified, for example, by PCIJ in the Phosphates in Morocco case.The Court
explicitly linked the creation of international responsibility with the existence of an act being attributable
to the State and described as contrary to the treaty right[s] of another State.

ICJ has also referred to the two elements on several occasions. In the United States Diplomatic and
Consular Staff in Tehran case, it pointed out that, in order to establish the responsibility of the Islamic
Republic of Iran: [f]irst, it must determine how far, legally, the acts in question may be regarded as
imputable to the Iranian State. Secondly, it must consider their compatibility or incompatibility with the
obligations of Iran under treaties in force or under any other rules of international law that may be

Similarly in the Dickson Car Wheel Company case, the Mexico-United States General Claims Commission
noted that the condition required for a State to incur international responsibility is that an unlawful
international act be imputed to it, that is, that there exist a violation of a duty imposed by an international
juridical standard.

9 United States Diplomatic and Consular Staff in Tehran, Judgment, I.C.J. Reports 1980, p. 3, at p. 29, para.
56. Cf. page 41, para. 90. See also Military and Paramilitary Activities in and against Nicaragua (footnote
[12] 36 above), pp. 117118, para. 226; and Gabkovo-Nagymaros Project (footnote [13] above), p. 54,
para. 78.
For particular conduct to be characterized as an internationally wrongful act, it must first be attributable
to the State. The State is a real organized entity, a legal person with full authority to act under international

But to recognize this is not to deny the elementary fact that the State cannot act of itself. An act of the
State must involve some action or omission by a human being or group: States can act only by and
through their agents and representatives.[45] 65 The question is which persons should be considered as
acting on behalf of the State, i.e. what constitutes an act of the State for the purposes of State

For example, under article 4 of the Convention relative to the Laying of Automatic Submarine Contact
Mines (Hague Convention VIII of 18 October 1907), a neutral Power which lays mines off its coasts but
omits to give the required notice to other States parties would be responsible accordingly.

German Settlers in Poland, Advisory Opinion, 1923, P.C.I.J., Series B, No. 6, p. 22

The second condition for the existence of an internationally wrongful act of the State is that the conduct
attributable to the State should constitute a breach of an international obligation of that State. The
terminology of breach of an international obligation of the State is long established and is used to cover
both treaty and non-treaty obligations. In its judgment on jurisdiction in the Factory at Chorzw case, PCIJ
used the words breach of an engagement.

It employed the same expression in its subsequent judgment on the merits. ICJ referred explicitly to these
words in the Reparation for Injuries case. The arbitral tribunal in the Rainbow Warrior affair referred to
any violation by a State of any obligation.

In practice, terms such as non-execution of international obligations, acts incompatible with

international obligations, violation of an international obligation or breach of an engagement are
also used. [50] 70 All these formulations have essentially the same meaning. The phrase preferred in the
articles is breach of an international obligation corresponding as it does to the language of Article 36,
paragraph 2 (c), of the ICJ Statute.

In international law the idea of breach of an obligation has often been equated with conduct contrary to
the rights of others. PCIJ spoke of an act contrary to the treaty right[s] of another State in its judgment
in the Phosphates in Morocco case.

That case concerned a limited multilateral treaty which dealt with the mutual rights and duties of the
parties, but some have considered the correlation of obligations and rights as a general feature of
international law: there are no international obligations of a subject of international law which are not
matched by an international right of another subject or subjects, or even of the totality of the other
subjects (the international community as a whole).

But different incidents may attach to a right which is held in common by all other subjects of international
law, as compared with a specific right of a given State or States. Different States may be beneficiaries of
an obligation in different ways, or may have different interests in respect of its performance. Multilateral
obligations may thus differ from bilateral ones, in view of the diversity of legal rules and institutions and
the wide variety of interests sought to be protected by them.
66 Factory at Chorzw, Jurisdiction (see footnote [10] 34 above).

67 Factory at Chorzw, Merits (ibid.). [48] 68 Reparation for Injuries (see footnote [14] 38 above), p. 184.
[49] 69 Rainbow Warrior (see footnote [22] 46 above), p. 251, para. 75.

70 At the Conference for the Codification of International Law, held at The Hague in 1930, the term any
failure ... to carry out the international obligations of the State was adopted (see Yearbook . . . 1956, vol.
II, p. 225, document A/CN.4/96, annex 3, article 1)